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The Senate ESEA Draft Has Three Opt-out Amendments

July 14, 2015

The Senate ESEA reauthorization bill, known as the Every Child Achieves Act of 2015, has three amendments that involve the subject of opting out of ESEA-mandated state testing.

Two of them were approved; one was not.

The first of these three was approved when the Senate ESEA draft was in committee. I wrote about it on May 01, 2015, as part of my three-part series on the 29 Senate ESEA draft amendments approved in the Senate ed committee:


This single-page amendment to Title I clarifies that the stipulations of states’ implementing assessments that are the same for all students (except for those students “with the most significant cognitive disabilities” {pg. 41}) is not to be confused with the federal government determining state or local law regarding opting children out of such state assessments:

RULE OF CONSTRUCTION ON PARENT AND GUARDIAN RIGHTS–Nothing in this part shall be construed as preempting a State or local law regarding the decision of a parent or guardian’s child participate in the statewide academic assessments under this paragraph.

In other words, the federal government wants to stay out of state and local decisions regarding parental opt-out laws. In order for such to be true, it must be the case that the federal government honors a state’s good-faith “implementation” of testing in accordance with the requirements for Title I funding and holds the state implementation as separate from student completion of the state-implemented tests when issues of parental rights enter the picture.

The Senate ESEA reauthorization requires states to provide for testing 95 percent of students. It does not require states to make students test. This is an important distinction because it means that the if the state planned to test 95 percent of its students but the state has opt-out provisions for parents to choose to opt their children out of federally-mandated state tests, then the federal government will not fault the state for parental decisions.

This amendment passed.

On July 14, 2015, a second opt-out amendment to the Senate ESEA draft, Senator Lee’s Amendment 2162, did not pass by a vote of 32-64. (For Senate roll call votes, click here.)

By being included in the Senate ESEA draft, Amendment 2162 would have set the opt-out policies for federally-mandated assessments for all states.  Note that the failure of amendment 2162 does not mean that the federal government will penalize states for state opt-out policies. To do so would contradict Isakson’s opt-out provision already approved and stated above. It means that opt-out is to occur at the state level, via state policy/legislation.

Another opt-out amendment that passed was also sponsored by Isakson, amendment 2194, for which the Senate has no text available. However, part of the text of Lee’s failed amendment 2162 concerns informing parents regarding opt-out procedures, which was the point of Isakson’s approved amendment 2192, according to the senate roll call description:

[SA 2192] To require local educational agencies to inform parents of any State or local educational agency policy, procedure, or parental right regarding student participation in any mandated assessments for that school year.

Amendment 2194 was approved 97-0 and complements Isakson’s other opt-out-related amendment that was approved in committee: States are to set their own opt-out procedures for ESEA-mandated tests; the states are not to tell the public that the state cannot have an opt-out to ESEA testing because the federal government prohibits such state law, and the states must make their opt-out policies known to parents for a given school year.

That’s the story on Senate ESEA amendments related to opting out of ESEA-mandated testing as of July 14, 2015.

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Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?, newly published on June 12, 2015.

both books

  1. Jill Reifschneider permalink

    Thanks again for the news. The idea that the state needs to provide for 95% of its students to test, but not 95% of the students test, is huge! The fact that this amendment passed means a lot. The state of WA is facing this situation this year – over 95% of its students opted out and the state is facing punishment for this according to NCLB rules. It is already being punished because of its refusal to use test scores to evaluate its teachers. The state lost its waiver last year over this issue, so nearly all its public schools were deemed to be “failing”. The restriction of federal funds is hurting public education in WA because of its stance against the worse enemy, NCLB.

  2. Terry Shoemaker permalink

    Cannot thank you enough for this too important information. Encourage everyone to share this with parents, and School District elected officials! Post and share fb as well.

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